Court File and Parties
Court File No.: 506/97 Date: April 22, 2014
Ontario Court of Justice
Re: Diana Leigh Mitchell – Applicant Ministry of Community and Social Services - Applicant James Donald Mitchell – Respondent
Before: Justice Roselyn Zisman
Counsel:
- Applicant – Self-represented
- Steven D. Kogan – for the Respondent
Heard On: By written submissions
Introduction
[1] In April 2013, the Respondent commenced a motion to change the order of Justice F.S. Fisher dated December 10, 1997 to retroactively terminate his child support obligation retroactively to each child's 18th birthday. There are four children of the marriage, namely Anthony James Davis Anderson born March 8, 1988 ("Anthony"), Jamie Leigh Anne Mitchell born July 31, 1991 ("Jamie"), Angela Sapphire Anne Mitchell born February 14, 1991 ("Angela") and Joseph Charles Mitchell born September 25, 1994 ("Joseph").
[2] The response to motion to change by the Applicant simply indicated that she did not agree to the Respondent's position with no details provided except that she attached attendance records for Angela and James from an adult education program in a local high school and a letter confirming they were both enrolled as of January 2013.
[3] At the trial management conference before me on December 9, 2013, the Respondent and the Ministry of Community and Social Services filed Minutes of Settlement relating to the Ministry's interest by agreeing that any support arrears were set at nil and neither party would claim an overpayment from the Ministry.
[4] The Applicant confirmed that the only issues for trial were, whether Angela and Joseph were enrolled in a full-time program of education for child support purposes, whether the Applicant was entitled to child support arrears and if entitlement was established, the amount of ongoing child support.
[5] The Applicant was ordered to serve a document brief by December 19, 2013 with all school reports and any educational assessments she would be relying upon at trial and the Respondent's counsel was to advise the Applicant by December 31, 2013 if he required any of the authors of the report to attend court for cross-examination.
[6] The parties were before the court on December 19th, 2013 for the trial assignment list but the Applicant had not prepared or served her document brief and was given a further extension to do so. A further to be spoken date had to be arranged to confirm the document brief was prepared and served.
[7] As a result the parties attended again before me on January 20th, 2014. Counsel for the Respondent confirmed he had been served with the Applicant's document brief and that he would not require any of the authors of the reports or anyone from the school to be present.
[8] The trial proceeded before me on March 24, 2014. At the commencement of the trial, the Applicant stated that she was no longer seeking ongoing child support from the Respondent, for either Angela or Joseph as they had not been attending high school since November 2013.
[9] I delivered oral reasons and granted the Respondent's motion to change terminating his child support obligations for each child as of their 18th birthday, rescinded any arrears and dismissed the Applicant's claim for any retroactive child support. As there has been an order suspending enforcement of the Respondent's child support obligation as of September 30th, 2013, I further ordered that any monies being held by the Family Responsibility Office be returned to the Respondent.
[10] The parties were permitted to file written submission as to costs. The Respondent filed his submissions and a bill of costs and the Applicant filed her response.
Position of the Parties
[11] The Respondent seeks partial recover of his costs from the date of commencement of the proceedings to November 2013 and subsequent to this time full recovery. He submits it is an aggravating factor that despite the Applicant being before the court on December 9th and 18th, 2013 and January 20th, 2014, she never advised the court of her change of position. As a result the Respondent incurred unnecessary legal expenses. He seeks costs of $12,456.98 inclusive of fees, disbursements and applicable taxes.
[12] The Applicant's brief attempts to re-litigate the issues at trial and further submits that she has a limited income and she only had the assistance of duty counsel and other court staff to assist her with her court documents and no counsel at trial.
[13] There were no offers to settle by either part.
[14] The Respondent was the successful party on all issues before the court.
Applicable Legal Principles
[15] 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.
[16] 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.
[17] In Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905 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.
[18] I also agree with the comments by Justice Perkins in Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) 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.
[19] 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) (2004), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), 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.
Application of Legal Principles to the Facts
[20] The respondent was the successful party on this motion to change and is presumed to be entitled to costs.
[21] 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 was not a complicated or difficult case and took less than a day to be completed; however, the issue of retroactive and ongoing child support were important to both parties;
b. the reasonableness or unreasonableness of each party's behavior in the case: the Applicant's behavior was not reasonable; despite not having the assistance of counsel at trial, the Applicant was before the court on three separate occasions between November 2013 and the trial and never advised the court or the Respondent's counsel that as of November 2013 Angela and Joseph were no longer attending school. The Applicant on at least one of those occasions she had the assistance of duty counsel in the courtroom and of course also had the opportunity of attending for free legal advice through the Family Law Information Centre. The Applicant was aware that the pivotal issue for trial was whether or not Angela and Joseph were enrolled in a full-time education program as of the date of the proceeding was commenced and as of the date of trial. It was clear to the Applicant from the inception of these proceedings, as set out in the Respondent's motion to change, and from the endorsements made by the case management judge that these were the issues. I therefore do not accept that the Applicant, because of the lack of counsel, did not know that she should have advised the court and counsel, prior to the start of the trial, that Angela and Joseph were no longer in school and she was not seeking child support for them.
c. the lawyer's rates: Counsel's hourly rate of $225 is reasonable although it would have been preferable if he had indicated his years of practice. The hourly rate for the law clerk and for senior counsel to attend the trial management conference is reasonable.
d. the time properly spent: the time spent with respect to preparation of pleadings, interviews, preparation for trial, drafting orders and preparation of trial record and preparation of court orders are all reasonable. I would also permit the time spent for attendances at court for the trial management conference, the trial assignment court and the other attendances to confirm the case was ready for trial. I would not permit the time spent to prepare for or to attend any case conferences or settlement conferences.
e. the expenses properly paid and payable: The usual disbursements are claimed.
f. any other relevant matter: the only other relevant consideration is the Applicant's limited financial resources. The Applicant's only source of income is a CPP disability pension. However, a lack of income cannot give a litigant the right to proceed to oppose a reasonable request to terminate child support when the evidence was overwhelming that the two older children were 25 years old and 22 years old when the proceeding began and had long been out of school and the other two children had not been in full-time attendance for several years and were not dependent on the Applicant.
[22] In considering all of these factors, I find that the Respondent is entitled to $7,000.00 in costs.
Order as Follows
The Applicant, Diana Leigh Mitchell shall pay to the Respondent costs fixed at $7,000.00 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: April 22, 2014