Court File and Parties
Court File No.: 370/07 Date: March 20, 2014
Ontario Court of Justice
Re: Gary Leonard Wells – Applicant And: Karen Wells-Pollard – Respondent
Before: Justice Roselyn Zisman
Counsel:
- Laura E. Oliver - for the Applicant
- Gary Leonard Wells – representing himself
Heard On: By written submissions
Costs Endorsement
Introduction
[1] On November 13, 2013 I heard two motions namely, a motion by the applicant, Mr. Wells ("father") to confirm a provisional order made in England, pursuant to the Interjurisdictional Support Orders Act ("ISOA"), that substantially reduced his child support obligations and a motion by the respondent, Ms. Wells-Pollard ("mother") to release about $50,000 held in trust in the context of a motion to change commenced by the father, in this jurisdiction and heard on an emergency basis on December 11, 2012.
[2] The mother appeared in person with her counsel and the father participated by telephone conference call. Both parties made submissions and relied on the affidavits and other documents filed both with respect to the motion to change and he filed and with respect to the ISOA proceedings.
[3] My decision was released on December 17, 2012. I held that the father had attorned to the jurisdiction of this court by commencing his motion to change and any variation of the outstanding support order of July 16, 2009 needed to proceed in this jurisdiction. I did not confirm the provisional order made in England. I further ordered released of the approximate $50,000 held by the father's real estate lawyer, pursuant to the order of December 13, 2012.
[4] The decision stated that the mother was presumed to be entitled to costs as she was the successful party and if she was seeking costs, her written submissions should be submitted within 30 days and the father would then make his written submissions 30 days thereafter. Mother's counsel provided her written submissions. The father has not filed any submissions in response.
Position of the Parties
[5] The mother seeks costs of $8,000.00 including all fees, taxes and disbursements which is an amount between full and partial recovery. It is submitted that the mother was completely successful on both motions, that the father's behavior increased the mother's costs and that the father has repeatedly taken the law into his own hands to the detriment of his children. Further, the father was able to deceive the court and remove significant funds, about $200,000, from this jurisdiction which could have been used as a source of ongoing child support. The father's support arrear, at the time the motion was heard were in excess of $75,000.
Applicable Legal Principles
[6] Rule 24(1) of the Family Law Rules provides guidance on costs on a family law context. Rule 24(1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.
[7] Rule 24(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.
[8] 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.
[9] I also agree with the comments by Justice Perkins in Biant v. Sagoo that:
the preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.
[10] I am also mindful that 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.
[11] Subsection (b) of Family Law Rule 24(11) relates to the reasonableness of each party's behavior in a case.
[12] In considering if a party acted reasonably, Family Law Rule 24(5) directs the court to consider if a party served made an offer to settle and the reasonableness of any offer to settle.
[13] Rule 24(5) provides that:
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[14] In this case, neither party made an Offer to Settle.
Application of Legal Principles to the Facts
[15] In determining the amount of costs, I have considered the legal principles and the following factors as set out in Rule 24(11) as follows:
a. The importance, complexity or difficulty of the issues: This matter was complex because of the legal issues involved due to the father commencing two different proceedings to reduce his child support obligations. Counsel was required to research the law and prepare a factum.
b. The reasonableness or unreasonableness of each party's behavior in the case: The father acted unreasonably in this proceeding. He did not provide full disclosure to the magistrate in England and did not advise that he had commenced a motion to change in Ontario for the same relief he sought in the ISOA proceedings.
c. The lawyer's rates: Ms. Oliver has practiced exclusively family law for 19 years and her hourly rate of $350 and a fee of $5,000 per day of trial is reasonable.
d. The time properly spent: Unfortunately the bill of costs submitted is vague, it does not have the dates or times for various tasks, refers to attendance for a conference, trial and an attendance for questioning. There were only two attendances for this motion, the first on October 8, 2013 when a timetable was set for service of documents and the process clarified and then on November 13, 2013 when both the motion and hearing regarding confirmation of the provisional order were heard. The court was never advised of any questioning taking place and in the circumstances I suspect this is an error. In total, the bill of costs indicates that Ms. Oliver spent 22.4 hours. As the hours spent appear to refer to attendances that are in error and there are no details of other attendances or time spent, I have determined that the time spent is excessive and must be reduced by half.
e. The expenses properly paid and payable: The usual disbursements are claimed and are only $39.55 for a process server.
f. Any other relevant matter: I believe it is appropriate to consider that the father's actions have deprived the children of the support they are entitled to and that the mother has been left to solely support the children. The father did not even pay the reduced child support ordered pursuant to the provisional order.
[16] In considering all of these factors, I find that the mother is entitled to $4,000.00 in costs. As the motions related to child support, the costs should be enforced by the Family Responsibility Office as an incident of support.
Order
The Applicant Gary Leonard Wells shall pay to the Respondent Karen Wells-Pollard costs fixed at $4,000.00 inclusive of disbursements and applicable taxes.
The Family Responsibility Office shall enforce this order as a support order.
Support Deduction Order to issue.
Counsel for the Respondent shall prepare this order and the approval of the Applicant as to form and content is hereby dispensed with.
Justice Roselyn Zisman
Date: March 20, 2014